Haines v R

[2021] NSWCCA 149

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Haines v R [2021] NSWCCA 149

Hearing dates:

30 April 2021

Decision date:

07 July 2021

Before:

Hoeben CJ at CL at [1];
Bellew J at [65];
N Adams J at [67]

Decision:

(1)   Leave to appeal is granted.

(2)   The appeal is dismissed.

Catchwords:

CRIMINAL LAW – appeal against sentence – 10 offences including accessory after the fact to break enter and steal, robbery armed with an offensive weapon, steal from the person and reckless wounding – error on part of sentencing judge in referring to maximum penalty for one of the offences – need to re-sentence – whether lesser sentence warranted in law – whether sentencing judge failed to properly consider totality and accumulation – no lesser penalty warranted in law – appeal against sentence dismissed.

Legislation Cited:

Crimes (Sentencing Procedure) Act1999 (NSW)

Criminal Appeal Act 1912 (NSW), s 6(3)

Cases Cited:

Aboud v Regina [2021] NSWCCA 77

Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37

CM v R [2013] NSWCCA 341

GP v Regina [2017] NSWCCA 200

Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37

Lonsdale v R [2020] NSWCCA 267

Newman (a pseudonym) v R [2019] NSWCCA 157

Qoro v R [2020] NSWCCA 276

R v Fernando (1992) 76 A Crim R 58

R v Jeremiah [2016] NSWCCA 241

R v MAK; R v MSK (2006) 167 A Crim R 159; [2006] NSWCCA 381

Category:

Principal judgment

Parties:

Isaac Haines – Applicant
Regina – Respondent

Representation:

Counsel:
L Brasch – Applicant
C Young – Respondent

Solicitors:
Toomey Defence Lawyers – Applicant
Solicitor for Public Prosecutions – Respondent

File Number(s):

2016/1511061; 2016/216765; 2017/170765

 Decision under appeal 

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

22 November 2019

Before:

Girdham SC DCJ

File Number(s):

2016/151061; 2016/216765; 2017/170765

JUDGMENT

1. HOEBEN CJ at CL:

Offending and sentence

The applicant seeks leave pursuant to s 5(1 )(c) of the Criminal Appeal Act 1912 (NSW) to appeal against the sentence imposed on him by her Honour Judge Girdham SC (the sentencing judge) on 22 November 2019 in the District Court at Sydney.

2. The applicant was sentenced to an aggregate sentence of 6 years and 4 months imprisonment, commencing 1 June 2019 and expiring 30 September 2025. The sentencing judge imposed an aggregate non-parole period of 3 years and 10 months with the applicant eligible for parole on 31 March 2023.

3. The following table summarises the offences, the respective maximum penalties and indicative sentences imposed:

Reference	Offence	Maximum Penalty (SNPP)	Indicative sentence
The Local Court offences
H63882588 Sequence 7	Damage property s 195 (1 )(a) Crimes Act 1900	5 years (No SNPP)	3 months
H63882588 Sequence 8	Possess prohibited drug s 10(1) Drug Misuse and Trafficking Act 1985	2 years (No SNPP)	3 months
The break and enter offences
201610720_2.1 Count 1	Accessory after fact to break, enter and steal s 112(1)(a)/s 347 Crimes Act 1900	5 years (No SNPP)	1 year 8 months
201610720_2.1 Count 2	Break, enter and steal s 112(1)(a) Crimes Act 1900	14 years (No SNPP)	1 year 7 months
The trial offence
201610720_2.2 Count 1	Robbery armed with offensive weapon s 97(1) Crimes Act 1900	20 years (No SNPP)	3 years 9 months
The stealing offences
201610720_5.2 Count 1	Steal from person s 94 Crimes Act 1900	14 years (No SNPP)	1 year 2 months
201610720_5.2 Count 3	Larceny s 117 Crimes Act 1900	5 years (No SNPP)	4 months
201610720_5.2 Count 4	Larceny s 117 Crimes Act 1900	5 years (No SNPP)	4 months
The gaol assault offences
201708359 1.3 - Count 2	Reckless wounding in company s 35(3) Crimes Act 1900	10 years (4 years)	3 years NPP 18 months
201708359 1.3 - Count 3	Assault occasioning actual bodily harm in company s 59(2) Crimes Act 1900	7 years (No SNPP)	2 years 4 months

4. The sentencing judge made a finding of special circumstances. The aggregate non-parole period is 60.5 per cent of the aggregate sentence.

5. At the time of sentence, the applicant was serving a sentence of imprisonment after conviction at trial for an offence of “armed robbery with a dangerous weapon”. The sentence imposed for that offence was 5 years and 6 months, commencing on 3 September 2016 and expiring on 2 March 2022. There was a non-parole period of 3 years and 4 months which expired on 2 January 2020.

6. The sentencing judge commenced the aggregate sentence from 1 June 2019, approximately seven months before the expiration of the existing non-parole period.

7. The applicant seeks leave to appeal against sentence on the grounds that:

Ground 1 – The sentencing judge erred in sentencing the applicant on the charge of accessory after the fact to break, enter and steal by reference to the wrong maximum penalty; and

Ground 2 – The sentencing judge erred in failing to consider the totality of the effective sentence given the sentence accumulation upon the applicant’s prior sentence and balance of parole and the finding of special circumstances.

8. The Crown has conceded that the sentencing judge did err in relying on the wrong maximum penalty for the offence of “accessory after the fact to break, enter and steal”. Her Honour incorrectly recorded the maximum penalty as 14 years instead of 5 years. Accordingly, it will be necessary to re-sentence the applicant.

Proceedings on sentence

9. On 10 May 2019, the Crown tendered a bundle (Exhibit 1) which contained all relevant factual matters relating to the proceedings before the sentencing judge. The Crown also tendered a Statement of Agreed Facts, together with the applicant’s criminal and custodial history.

10. The applicant did not give evidence in the sentence proceedings. He relied on the reports of Kris North, psychologist, dated 18 September 2018 and 16 April 2019. On 25 October 2019, the sentencing judge heard oral submissions from the Crown and applicant. The sentencing judge delivered her reasons on sentence (ROS) on 22 November 2019.

Factual background

11. The first four sets of offending (relevant to eight of the ten charges) occurred between 8 April 2016 and 16 May 2016, while the applicant was on parole. The last set of offending related to an assault on 15 March 2017 while the applicant was in custody.

The break and enter offences

12. The background to this offending was that on 8 April 2016 at 9:47am, the applicant was shown on CCTV opening the side gate of a property in Drumalbyn Road, Bellevue Hill (the premises) and entering the backyard. Five minutes later, the applicant walked from the backyard to the driveway and unsuccessfully attempted to open the door of a parked vehicle. The applicant then moved to a black Range Rover, opened the rear passenger door and stole $10 worth of coins from the centre console (Form 1 offence: larceny).

13. At 9:59am, the applicant was observed on CCTV as he walked along the driveway with the co-offender, Jason Rolani. They both went into the backyard of the premises. Shortly thereafter, Mr Rolani was shown on CCTV walking up to the premises alone. Access to the premises was gained by a rear sliding door and approximately $35,330 of property was stolen. At 10:18am, the applicant was observed carrying the property in pillow cases and doona covers, which he placed into the back seat of a car. The applicant then got in the passenger seat of the car and Mr Rolani drove it from the premises. (Count 1: Accessory after the fact to break, enter and steal.)

14. At 8:50am on 11 April 2016, Donald and Wendy Livingston, the owners of premises at Cameron Street, Edgecliff, secured their property and activated their alarm. Shortly thereafter, the applicant forced entry to the rear door and stole approximately $12,320 worth of property. The applicant was identified by a fingerprint located on a wooden jar he had moved within the property.

15. Mr Rolani pleaded guilty to an offence of break, enter and steal in relation to the Bellevue Hill premises, and was sentenced in the Local Court to a term of 9 months imprisonment with a non-parole period of 3 months. This was on a different factual basis to the applicant, in that the applicant had committed the break and enter whilst Mr Rolani acted as the lookout and driver.

The Local Court offences

16. These offences were committed between 15 and 16 May 2016.

17. At about 10:00am on 15 May 2016, Ms Jing Zhang was reverse parking her car in Surry Hills when she observed the applicant on the footpath. As she reversed the vehicle, he attempted to open her passenger door, but it was locked. Ms Zhang finished parking and took a photograph of the applicant. The applicant then “threw something hard at her windscreen, taking a chip out of it”. Ms Zhang contacted a friend, who rang police, but the applicant left the scene before police arrived.

18. On the morning of 15 May 2016, Ms Nicola Rooke left her Mercedes Benz locked and secured in Randle Street, Surry Hills. At approximately 11:30am, the applicant smashed the rear window of the vehicle and stole a brown leather baby change bag, valued at $250 (Count 3: larceny). The applicant also broke into another vehicle parked on Randle Street, a Toyota Corolla owned by Ms Xue Fei Li. The applicant stole a handbag containing $2000 cash and Ms Li’s identification and bank cards (Count 4: larceny).

19. At approximately 3:00pm on 15 May 2016, Ms Katrina Wolff was driving her car in Redfern. While stopped at a red light, the applicant opened the front passenger door, leant in to the car and stole Ms Wolff’s handbag from the car. The handbag contained $60 cash and Ms Wolff’s identification and bank cards (Count 1: steal from person).

20. The applicant was arrested on 16 May 2016 at an address in Redfern. At the time of his arrest, the applicant was in possession of 0.02g of methamphetamine (possess prohibited drug). Items belonging to Ms Rooke and Ms Li were located at the premises.

Robbery armed with an offensive weapon – the trial proceeding

21. The applicant stood trial before the sentencing judge and was convicted by a jury on 17 January 2019 of “robbery armed with an offensive weapon”. The indictment particularised the offence as having occurred on 15 May 2016. The offensive weapon was a “claw hammer”. The victim was identified as Yan Zhou and the property taken was $1,700 in cash, the property of “Liquor and Wattle” bottle shop.

22. The issue at trial was identification. Clearly, the jury were satisfied that the applicant was the perpetrator of the offence. The offence was shown on CCTV which was played to the jury. Viewing that footage demonstrated a short but determined offence in which the applicant held a weapon in a menacing manner.

Reckless wounding in company and assault occasioning actual bodily harm in company (“the gaol assault offences”)

23. On 15 March 2017, the applicant and his co-offender, Lawrence Bamblett, were prisoners at the Metropolitan Reception and Remand Centre (MRRC). At 12:56pm, the applicant and Mr Bamblett were “associating together” in the outdoor exercise area of the MRRC. After a few minutes, they both approached the victim, inmate Christopher Rymer.

24. Mr Bamblett punched Mr Rymer to the head, causing him to fall to the ground. Mr Bamblett and the applicant then commenced kicking the victim to the body and head, with the applicant on occasion using a stomping motion (Count 3: assault occasioning actual bodily harm in company).

25. Mr Bamblett then produced a “shiv” from his pocket and began to stab the victim repeatedly in the back. At one point Mr Bamblett stopped and stood up, at which point the applicant became aware Mr Bamblett had the weapon. Mr Bamblett then commenced stabbing the victim with the “shiv” again, and the applicant kicked the victim in the head “on at least one other occasion”. The two offenders then left the victim on the ground (Count 2: reckless wounding in company).

26. The victim was taken to Concord Hospital and was treated. As a result of the attack, the victim suffered swelling of the right ear and abrasions to his face and hands. The victim had eight puncture wounds to his right shoulder and upper back, with two having breached the dermis of the victim’s skin. The two offenders were identified due to CCTV footage of the incident and arrested on 7 June 2017.

27. The co-offender, Mr Bamblett, pleaded guilty to an offence of “reckless wounding in company” with the offence of “assault occasioning actual bodily harm in company” placed on a Form 1. Mr Bamblett was sentenced to 1 year and 4 months, with a non-parole period of 9 months, after receiving a 60 per cent discount.

Subjective case on sentence

28. The applicant was aged 26-27 at the time of the offending and 29 at the time of sentence. He had a considerable history in relation to offences involving violence and theft. In particular, on 9 October 2014, the applicant was sentenced for an offence of “break, enter and steal” to 2 years and 6 months imprisonment commencing on 1 February 2014 and expiring 31 July 2016. There was a non-parole period of 9 months and the applicant was released to parole on 1 February 2016. As a result, all the offending except the gaol assault offences occurred while the applicant was subject to parole.

29. The applicant was taken into custody on 16 May 2016. The applicant’s parole was revoked and he served the balance of parole from 16 May 2016 until 2 September 2016. The applicant then remained in custody until his sentencing date of 22 November 2019.

30. The applicant was convicted after a judge alone trial for an offence of “armed robbery with a dangerous weapon” committed on 10 March 2016 (approximately one month before the commencement of the subject offences). Frearson SC DCJ sentenced the applicant to imprisonment for 5 years and 6 months, commencing on 3 September 2016 (the date after the balance of parole expired) and expiring on 2 March 2022. There was a non-parole period of 3 years and 4 months which expired on 2 January 2020.

31. In the report dated 18 September 2018, (in relation to the offence before Frearson SC DCJ) the psychologist, Kris North, noted:

1. the applicant reported going on a “crime spree” after his girlfriend died from a drug overdose in early 2016, was taking drugs on a daily basis and had no memory from the relevant time of the offence;

2. the applicant reported living in “impoverished” circumstances as a child and adolescent, and had limited contact with his mother who suffered from schizophrenia;

3. the applicant left school at Year 9 and was “felt to be in the below average range of cognitive functioning based on his presentation at assessment and his academic history”;

4. the applicant had an extensive drug history, commencing using cannabis at age 10 and heroin and methamphetamine at age 19-20;

5. the applicant's repeated incarceration had resulted in the applicant being “institutionalized”;

6. the results of the “Level of Service Inventory – Revised” indicated that the applicant posed a “medium/high” risk of reoffending;

7. the applicant had a “history of aggressive behaviours” and it was recommended he engage in treatment to assist in managing his aggression;

8. the applicant satisfied the criteria for “stimulant use disorder, moderate, amphetamine-type substance” and “opioid use disorder”. He did not meet the criteria for any mental disorders at the time of assessment; and

9. it was further recommended that the applicant engage in a long term intensive drug treatment program whilst in custody, such as the Compulsory Drug Treatment Correctional Centre (CDTCC).

32. In a supplementary report, dated 16 April 2019, Kris North referred to the subject offences before the court and noted:

1. factors outlined in the prior report remained relevant, including the applicant’s deprived background, learning difficulties and early substance abuse;

2. the applicant remained at a “medium to high” risk of reoffending;

3. it was recommended the applicant be referred to an intensive drug treatment program to reduce his risk of relapse in custody or upon release; and

4. it was recommended the applicant be provided with support upon discharge from custody, “particularly in finding suitable employment and accommodation, due to his history of institutionalisation and past difficulties integrating into the community upon release”.

Findings of the sentencing judge

33. The sentencing judge outlined the offences, maximum penalties and the timing of the guilty pleas. Relevant to Ground of Appeal 1, was that the sentencing judge indicated a maximum penalty of “14 years imprisonment” for the offence of “accessory after the fact to break enter and steal”. This was consistent with the incorrect maximum penalty for the offence stated on the coversheet of the Crown sentence bundle.

34. The sentencing judge determined the applicant was not entitled to a discount for the trial; he was entitled to a 25 per cent discount for the matters to which he had pleaded guilty in the Local Court (damage property and possess prohibited drug); and a 15 per cent discount for the remaining matters to which he had pleaded guilty in the District Court.

35. The sentencing judge referred to the applicant having been released to parole in February 2016, the commission of the “robbery armed with a dangerous weapon” offence, the revocation of parole and the terms of the sentence imposed by Frearson SC DCJ.

36. The sentencing judge referred to the “very thorough report” of Kris North and found that it demonstrated “the need for the Court to recognise his social disadvantage and that frequently and regardless of an offender’s ethnicity, precedes the commission of crime”. The sentencing judge noted the applicant’s early exposure to drugs and alcohol and found “regardless of his age and antecedents, these are all matters that, to a modest degree, mitigate the sentence that must be imposed”. The sentencing judge also found the applicant’s early exposure to drugs impacted the sentence “so as to reduce his moral culpability and that reverberates on an assessment of objective seriousness”.

37. Her Honour noted that the applicant described many of the offences for which he was to be sentenced as "a crime spree that he commenced after his girlfriend died from a drug overdose in 2016" and that the applicant had no memory of the offending.

38. In relation to objective seriousness, the following findings were made:

1. “robbery armed with offensive weapon” – “below mid-range” given it was opportunistic offending but the amount taken was not inconsiderable;

2. “accessory after the fact to break, enter and steal” and “break, enter and steal” – “below mid-range although approaching mid-range” noting the offending was opportunistic but the property stolen was of considerable value;

3. “reckless wounding in company” and “assault occasioning actual bodily harm in company” – “well below mid-range” finding that whilst the offending was serious the applicant’s role was much more limited than that of the co-offender; and

4. whilst specific findings were not made for the less serious matters of “larceny”, “possess prohibited drug” and “damage property” the sentencing judge referred to being satisfied that “each offence falls below mid-range level of seriousness”.

39. Her Honour referred to s 56 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the Sentencing Act) and found that it did not apply as the applicant was not a “convicted inmate” at the time of the gaol assault offences. Her Honour found that, even if he were a “convicted inmate” she would have directed the sentence not be served consecutively on the other sentences of imprisonment.

40. The sentencing judge found special circumstances because the applicant had a Fernando background (R v Fernando (1992) 76 A Crim R 58) and required ongoing support and supervision upon his release “to ensure he does not fall back to his previous habits”.

39. The sentencing judge took into account that there had been more than one offence and that “questions of accumulation and concurrence and the question of totality must be given effect”. Her Honour indicated that an aggregate sentence would be imposed but that “the ultimate sentence must reflect the total criminality” and “the aggregate non-parole period must reflect the minimum period of imprisonment required to be served by an offender having regard to all the purposes of justice”.

40. The sentencing judge referred to the sentence imposed by Frearson SC DCJ finding:

“As to the commencement date I have resolved to order that the sentence to be imposed commence before the expiration of the sentence the offender is presently serving. To do otherwise would result in a sentence which fails to acknowledge the principles of totality.”

43. The sentencing judge also found that:

1. offending committed whilst on parole would be taken into account as an aggravating factor “to aggravate the length of the appropriate sentence imposed”;

2. the Form 1 “adds little to the appropriate sentence” for the accessory after the fact offence;

3. it would only be if the applicant had engaged with counselling and rehabilitation in relation to his drug use that his prospects of rehabilitation would be assessed as “anything other than poor”; and

4. general and specific deterrence remain relevant to the sentencing exercise, although general deterrence was reduced somewhat by the applicant’s subjective case.

Consideration and re-sentence

44. As previously indicated, it will be necessary for the Court to re-sentence the applicant.

45. Having undertaken afresh a separate and independent exercise of the sentencing discretion, and taking into account the full range of factors referred to in par [46] below, I have concluded that a less severe sentence is not warranted in law and would dismiss the appeal (Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [35] and [42]).

46. Even allowing for the application of the Bugmy principle (Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37) in that the applicant suffered a disadvantaged upbringing, including early exposure to drugs, alcohol and violence, the following factors are of significance:

1. the applicant was sentenced for 10 offences and with the exception of the “accessory” matter, there has been no challenge to the sentencing judge’s findings as to objective seriousness or the relevant aggregate penalty and indicative sentences imposed;

2. only the two Local Court offences were subject to an early plea warranting a 25 per cent discount. The offence of “robbery armed with an offensive weapon” involved a verdict of guilty and the remaining matters were pleas entered in the District Court warranting a 15 per cent discount only;

3. while the majority of the offending occurred in a limited period between 8 April and 25 May 2016, the offending also involved seven victims and serious conduct including armed robbery and break and enter requiring accumulation in the aggregate sentence;

4. the gaol assault offence occurred almost a year later than the offending on parole and while s 56 of the Sentencing Act did not apply because the applicant was on remand, a large degree of accumulation would be consistent with the legislative policy underlying s 56 (R v Jeremiah [2016] NSWCCA 241 at [12]);

5. the sentencing for all matters, except the “gaol assault offences”, was aggravated because the applicant was on parole at the relevant time;

6. the applicant had a considerable criminal history which disentitled him to any leniency;

7. it would be necessary for the applicant to engage with counselling and drug rehabilitation services in order to avoid a finding that he had poor prospects of rehabilitation;

8. general and specific deterrence remained relevant, even accepting that general deterrence was reduced by the applicant’s subjective case; and

9. the applicant had the benefit of a finding of special circumstances which - even in combination with the existing sentence - permitted a longer period of supervision in the community to assist with his drug rehabilitation, than the statutory ratio of 75 per cent.

47. Even accepting the impact of the lower maximum penalty on the indicative sentence for “accessory after the fact to break, enter and steal”, in the particular circumstances surrounding this offence, I have concluded that no lesser aggregate sentence than 6 years and 4 months is warranted in law.

48. Although the above analysis is sufficient to make out the proposition that no lesser sentence is warranted in law, for completeness it is necessary to consider Ground 2.

Ground 2 – The sentencing judge erred in failing to consider the totality of the effective sentence given the sentence accumulation upon the applicant’s prior sentence and balance of parole and the finding of special circumstances

49. The effect of Ground 2 is to specifically raise for consideration the principles of totality as they apply in this case.

Consideration

50. The application of the principles of totality was discussed in R v MAK; R v MSK (2006) 167 A Crim R 159; [2006] NSWCCA 381. The Court (Spigelman CJ; Whealy and Howie JJ) said at [99]-[100]:

“99   It should be made clear that, where a judge is sentencing for offences in a situation where another judge has already sentenced the offender for other offences, the second judge must regard the first sentence as an appropriate exercise of the first judge’s discretion and not seek to reduce or increase it by the sentences the second judge imposes. We are not suggesting that this is what Hidden J did or attempted to do. But we note the difficulty that confronts the second judge in trying to determine what the overall sentence would have been had a single judge been sentencing the offender for all offences for which he is, and has been, punished. That is in effect part of what an application of the principle of totality requires. We should approach the task, as Hidden J was required to do, by taking into account that the sentences imposed by Sully J were appropriate to reflect the seriousness of the offences before him.

100    As we noted in R v MMK, the sentences imposed by Sully J were justifiably heavy as the criminality was high and there was little by way of mitigation of the objective seriousness of the offences or otherwise. But as we have already stated, the total criminality before Hidden J was also substantial and there was little by way of mitigation. The principal consideration was therefore to impose a sentence that significantly reflected the total criminality and the proper purposes of punishment but took into account the purposes to be served by the principle of totality discussed above.”

51. In Lonsdale v R [2020] NSWCCA 267 it was held by Hoeben CJ at CL (with the agreement of Beech-Jones and N Adams JJ) at [32]:

“... a sentencing judge is not required, where there is an existing term of imprisonment, to perform a calculation to ascertain what proportion of the sum of the non-parole period and the period already spent in custody bore to the total term: Stoeski v Regina [2014] NSWCCA 161 at [53]; Tuivaga v R [2015] NSWCCA 145 at [39].”

52. The relevant question for this Court in relation to special circumstances and the total sentence is whether the overall result reflects “what the sentencing judge specifically intended” or whether it is “the result of inadvertence or miscalculation” (See CM v R [2013] NSWCCA 341 at [40]). In determining this issue, it is necessary to consider “whether the record of proceedings leads to an inference that the matter was considered or adverted to or not” (GP v Regina [2017] NSWCCA 200 at [22]). If the result was intended, then error has not been shown.

53. In this case, the sentencing judge was aware of the balance of parole and the sentence imposed by Frearson SC DCJ for the offence of “robbery armed with a dangerous weapon” and referred to both early in her reasons. Near the conclusion of her reasons, the sentencing judge explicitly referred to the principles of totality when determining a commencement date, finding:

“As to the commencement date I have resolved to order that the sentence to be imposed commence before the expiration of the sentence the offender is presently serving. To do otherwise would result in a sentence which fails to acknowledge the principles of totality.” (Emphasis added) (ROS 19)

54. The primary complaint in the applicant’s submission as to Ground 2 is directed towards the impact of the accumulation of sentences on the sentencing judge’s finding of special circumstances. It is accepted that her Honour did not expressly refer to accumulation of sentences as a factor in the finding of special circumstances; however, this was not one of the factors which the applicant submitted was relevant to the finding during the proceedings on sentence (T 25.10.2019, line 30).

55. The applicant served a balance of parole from 16 May 2016 (the date of his arrest) until 2 September 2016. The sentence imposed by Frearson SC DCJ was imprisonment for 5 years and 6 months, commencing on 3 September 2016 and expiring on 2 March 2022. There was a non-parole period of 3 years and 4 months which expired on 2 January 2020. This sentence reflected a finding of special circumstances with the ratio altered to 60.6 per cent, with a period of 2 years and 2 months on parole (if released at the earliest date).

56. Significantly, the sentencing judge also made a finding of special circumstances and imposed an aggregate sentence of 6 years and 4 months, with an aggregate non-parole period of 3 years and 10 months, a ratio of approximately 60.5 per cent.

57. The commencement date imposed by the sentencing judge was 1 June 2019, approximately seven months before the expiry of the non-parole period the applicant was serving. The total sentence (including the balance of parole) was therefore approximately 9 years, 4½ months (16 May 2016 - 30 September 2025) with a non-parole period of approximately 6 years, 10½ months (16 May 2016-31 March 2023). This equates to a total ratio of approximately 73.3 per cent and importantly, given the length of the total sentence, a parole period of approximately 2 years and 6 months.

58. This was not a matter where the sentencing judge indicated that the finding of special circumstances would result in a particular ratio (e.g. 66.7 per cent in Qoro v R [2020] NSWCCA 276 at [51]). The ultimate non-parole period still reflected a finding of special circumstances and allowed the applicant approximately two and a half years to receive ongoing support and supervision in the community.

59. Otherwise, to maintain a total ratio of approximately 60 per cent, having taken into account totality and commencing the sentence on 1 June 2019, would have required an aggregate non-parole period of approximately 2 years and 6½ months. The Crown submitted (properly in my opinion) that such a determination for the 10 offences would be contrary to the requirements as expressed by the sentencing judge:

“The ultimate sentence must reflect the total criminality. The aggregate non-parole period must reflect the minimum period of imprisonment required to be served by an offender having regard to all the purposes of justice.” (ROS 19)

60. As the applicant accepted (applicant’s submissions at [38]), this is not a matter where accumulation has resulted in a non-parole period above the statutory ratio of 75 per cent. This is particularly so given that the sentencing judge was well aware of the balance of parole and sentence imposed by Frearson SC DCJ and explicitly referred to totality. In those circumstances, the inference is clear that the accumulation was deliberate and was within her Honour’s broad sentencing discretion.

61. I have concluded that the fact that the sentencing judge commenced the sentence before the expiration of the existing non-parole period and that the total sentence still reflected a finding of special circumstances (including a period of 2 years and 6 months for the applicant to receive support upon release) supports that this was intentional on her Honour’s part and does not involve a miscalculation or inadvertence.

62. Accordingly, no error having been shown, Ground 2 has not been made out.

Conclusion

63. For the above reasons, it follows that despite error having occurred giving rise to Ground 1, no other error has been identified and on re-sentence no lesser sentence is warranted in law.

64. The orders which I propose are:

1. Leave to appeal is granted.

2. The appeal is dismissed.

65. BELLEW J: I have read, in draft, the judgment of Hoeben CJ at CL. Having adopted the findings of the sentencing judge, and in the fresh evidence exercise of the sentencing discretion, I have reached the conclusion that no lesser sentence is warranted. I therefore agree with the orders proposed by Hoeben CJ at CL.

66. I also wish to specifically state my agreement with the observations of N Adams J regarding the circumstances in which the error contended for in ground 1 was made out. All practitioners appearing in sentence proceedings, be it for the Crown or for an offender, have an obligation to ensure that a sentencing judge is not led into error by the provision of incorrect information, be that information as to the applicable maximum penalty for the offence in question, or otherwise.

67. N ADAMS J: I agree with Hoeben CJ at CL for the reasons provided. The Crown conceded error in the aggregate sentence on the basis that the sentencing judge stated that the maximum penalty for the offence of accessory after the fact to break, enter and steal was 14 years imprisonment when it was in fact 5 years imprisonment. The DPP solicitor had stated the wrong maximum penalty on the Crown sentence summary and the applicant’s legal representatives failed to correct it. Regrettably, this is a surprisingly common occurrence. District Court judges dealing with large caseloads should be able to rely on counsel to assist in this regard.

68. The Crown concession that this Court should proceed to re-sentence the applicant was properly made. As Basten JA (Hamill and Lonergan JJ agreeing) observed in Newman (a pseudonym) v R [2019] NSWCCA 157 at [11], since Kentwell (Kentwellv The Queen (2014) 252 CLR 601; [2014] HCA 37) an applicant does not need to establish that an error has had an actual effect on the sentence imposed; only that it had the “capacity to influence the sentence”. Applying the wrong maximum penalty clearly has such a capacity. When this Court re-sentences an applicant it does so afresh, which involves putting the sentence imposed at first instance to one side. Simpson AJA explained it in this way in Aboud v Regina [2021] NSWCCA 77 at [4]-[5]:

“The task of this Court in resentencing after error has been established in the sentencing process is, as stated in Kentwell v The Queen, to exercise its own sentencing discretion, independently of the sentence imposed at first instance. That task is not discharged by concluding that ‘no lesser sentence is warranted in law’, which is simply wrong unless the sentence imposed lies at the bottom of the available range. As the High Court said in Kentwell, any sentence within an available range is ‘warranted in law’.

The test stated by s 6(3) is a composite one, in two parts, the most important of which is the second – ‘and should have been passed’… Sentencing is not an exact science and no one sentence can be said to be the correct sentence (as distinct from a correct sentence). Thus, any sentence that lies within the available range is ‘warranted in law’. A lesser sentence than that imposed at first instance may, and often is, ‘warranted in law’. It does not follow from that that the lesser sentence ‘should have been passed’. That phrase implies that the established error in the sentencing process had the effect of wrongly elevating the sentence imposed, rendering the sentence excessive in the circumstances. Otherwise, it would not be possible to say that the other sentence ‘should have been passed’.” (citations omitted)

69. By putting the aggregate sentence imposed to one side and exercising my discretion afresh I have arrived at an aggregate sentence slightly higher than that imposed at first instance and for that reason would dismiss the appeal on the basis that no lesser sentence is warranted in law: s 6(3) of the Criminal Appeal Act 1912 (NSW). I have adopted all the same findings as the sentencing judge, including as to the assessments of objective seriousness.

70. The error in this appeal pertained to the maximum penalty for an indicative sentence which was just one of multiple offences for which the applicant stood for sentence. An aggregate sentence was imposed. Any expectation on the part of an applicant in that position that a lesser sentence will inevitably be imposed on appeal misapprehends the task undertaken by this Court when resentencing, consistent with what the High Court said in Kentwell.

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Decision last updated: 07 July 2021